TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00406-CR
Irving Torres, Appellant
v.
The State of Texas, Appellee
FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 79400, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Irving Torres of indecency with a child, a second-degree felony.
See Tex. Penal Code § 21.11(a)(1), (d). The trial court entered judgment on the jury’s verdict,
assessing punishment at seven years’ imprisonment. In a sole appellate issue, Torres contends that
the trial court abused its discretion by admitting into evidence the video recording of the alleged
victim’s forensic interview at a Children’s Advocacy Center (CAC). Because Torres’s counsel’s
comments and cross-examination impliedly charged the alleged victim with recent fabrication
and improper influence affecting her trial testimony, the recording of the CAC interview became
admissible under Rule of Evidence 801(e)(1)(B). We affirm.
BACKGROUND
The State indicted Torres with aggravated sexual assault, see Tex. Penal Code
§ 22.021(a)(1)(B)(i), (a)(2)(B), for having “cause[d] the penetration of the female sexual organ of [M.W.], a child who was then and there younger than 14 years of age, by [Torres]’s finger.”1 At
trial, Torres requested that the jury be instructed with a lesser included offense, indecency with a
child, and the State agreed. The jury acquitted Torres of aggravated sexual assault but convicted
him of indecency with a child, which does not require proof of penetration like the indictment for
aggravated sexual assault did. Compare id. § 21.11(a)(1), with id. § 22.021(a)(1)(B)(i), (a)(2)(B).
M.W. was born in July 2002. After her parents separated and divorced, M.W.
lived with her mother and visited her father from time to time. Torres later married M.W.’s mother
and moved in with them. M.W. testified that a couple of years later, when she was around 10 or
11 years old, Torres abused her the “first time.” M.W. ultimately testified to at least five instances
of abuse by Torres, including that he penetrated her vagina with his hands at least five times, and
gave details about three instances, occurring in her bedroom, the kitchen, and by her bookshelf.
M.W. testified that the first time that Torres abused her was in her bedroom. She
was lying on her bed while her mother was busy “with something else,” and Torres came into
her room. He rubbed her thighs and touched her “in places you wouldn’t normally touch.” She
testified that over time he kept doing similar things and that it “got worse,” with his touching her
breasts, butt, and vaginal area. This happened in several rooms of the house and always while her
mother was either out of the home or using the restroom.
M.W. also testified that the first time Torres digitally penetrated her was in the
kitchen. She was sitting at the table doing homework, and he approached her while her mother
1 M.W. was a minor during the events underlying Torres’s prosecution, so we will protect her identity. See Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 was in the restroom. He put his hands down her pants and grabbed her butt and breasts and
eventually penetrated her vagina with his fingers.
The final instance of abuse was in M.W.’s room and ended near her bookshelf.
M.W. testified that Torres came in her room and grabbed her, she tried to get out of his grasp, he
dropped her, she hit her head near her bookshelf, Torres left the room, and she developed a mark
on her forehead in the morning. Her mother took pictures of M.W.’s forehead and thought the
injury was from M.W.’s tossing and turning at night.
M.W. did not report any of the alleged instances of abuse to her mother until she
was 12 years old, when she saw an online article about what sexual assault is, and it sounded like
what had happened to her. She told her mother what Torres had done, but she did not believe her.
Her mother discussed the issue with leaders at her religious institution, rather than calling police,
and confronted Torres. Torres explained that he had only been play-fighting with M.W., so any
inappropriate touching was an accident. The abuse stopped after Torres was confronted.
About two years later, M.W. testified, a classmate raped her. M.W. saw a counselor
and in the course of therapy sessions disclosed to the counselor and then to her father what Torres
had done years earlier. Her father called the police, M.W. spoke with police and gave a statement,
and Detective Angela Mathiews began investigating both the alleged abuse by Torres and the
alleged rape by the classmate. M.W. took part in a forensic interview at a nearby CAC. At one
point during the interview, M.W. said “that there was no penetration except for [Torres’s] fingers
in [her] vagina.” She said that there was no penetration because she then believed that penetration
meant only penile penetration of a vagina.
After the CAC interview, a Sexual Assault Nurse Examiner (SANE) examined
M.W. As a result of her investigation, which included reviewing witness statements and the CAC
3 interview, Det. Mathiews recommended charging Torres with indecency with a child and not
aggravated sexual assault.
The State indicted Torres for aggravated sexual assault, and the case went to
trial before a jury. The State called several witnesses, including M.W., her mother, her father,
Det. Mathiews, the SANE who examined M.W., M.W.’s counselor, and the CAC forensic
interviewer. After all its witnesses testified, the State offered into evidence the recording of the
CAC interview, and Torres objected. After arguments from counsel, the trial court admitted the
recording, explaining that the Rule of Optional Completeness supported admission.
The jury convicted Torres of the lesser included offense of indecency with a child
and acquitted him of aggravated sexual assault. The trial court entered judgment on the verdict,
and Torres now appeals.
ADMISSION OF RECORDING OF CAC FORENSIC INTERVIEW
I. Standard of review
We review the trial court’s admission of the recording of the CAC forensic
interview for an abuse of discretion. See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App.
2007); Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). A trial court abuses
its discretion only if its decision lies outside the “zone of reasonable disagreement.” Walters,
247 S.W.3d at 217. We must affirm the trial court on any legal theory supported by the record, even
if the theory is not one on which the trial court itself relied. See State v. Esparza, 413 S.W.3d 81,
85 & n.17 (Tex. Crim. App. 2013); Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App.
2005); Miles v. State, 488 S.W.2d 790, 792 (Tex. Crim. App. 1972). Our review must focus on
the record before the trial court when it admitted the evidence at issue. Carrasco, 154 S.W.3d
at 129; Weatherred v. State, 15 S.W.3d 540, 542–43 (Tex. Crim. App. 2000). 4 II. All four elements of Rule 801(e)(1)(B) are supported by the record.
Torres’s appellate brief only addresses two rules of evidence—Rules of
Evidence 801(e)(1)(B) and 107—arguing that neither supported admitting the recording over his
objections. At trial, Torres objected on grounds of hearsay, relevance, and Rule of Evidence 403.
But in his appellate brief, Torres does not argue why the recording was hearsay, was irrelevant, or
would have failed a Rule 403 balancing. Instead, he argues only that admitting the recording as
evidence under either Rule 801(e)(1)(B) or Rule 107 was an abuse of discretion that harmed him.
Given these arguments on appeal, if we hold that the trial court’s admission of the record was not
an abuse of discretion under either Rule 801(e)(1)(B) or Rule 107, then that resolves all arguments
that Torres has made under his sole appellate issue. See Tex. R. App. P. 47.1.
Rule 801(e)(1) excludes from the general prohibition on hearsay certain prior
statements by a declarant who testifies and is subject to cross-examination about the prior
statement. One such category of non-hearsay is statements that are “consistent with the declarant’s
testimony and [are] offered to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so testifying.” Tex. R.
Evid. 801(e)(1)(B); Hammons, 239 S.W.3d at 804 (“Rule 801(e)(1)(B) gives substantive,
non-hearsay status to prior consistent statements of a witness ‘offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or motive.’”).
To be admissible,
(1) the declarant must testify at trial and be subject to cross-examination;
(2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony by the opponent;
(3) the proponent must offer a prior statement that is consistent with the declarant’s challenged in-court testimony; and,
5 (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.
Hammons, 239 S.W.3d at 804 (citing Tome v. United States, 513 U.S. 150, 156–58 (1995)).
Because Rule 801(e)(1)(B) mirrors its federal counterpart, “federal decisions provide helpful
analysis.” Id. M.W. testified at trial and was cross-examined, so the first element is met.
A. Implied charge of recent fabrication or improper influence or motive
Under the second element, the foundation requirement for an implied charge of
fabrication or improper influence is “minimal.” See id. Although not just any attack on a witness’s
credibility or memory amounts to a charge of fabrication or improper motive, “there need be only a
suggestion of conscious alteration or fabrication” to trigger the trial court’s “substantial discretion
to admit prior consistent statements under the rule.” Id. at 804–05.
To decide whether an opposing party impliedly charged a witness with fabrication
or improper influence or motive, the reviewing court reviews everything before the trial court
when it made its admissibility ruling. See id. at 807–09; see also Carrasco, 154 S.W.3d at 129;
Weatherred, 15 S.W.3d at 542–43. The review may extend to matters that came after the ruling,
like the opposing party’s closing argument, insofar as those matters confirm that an implied charge
occurred before the ruling. See Hammons, 239 S.W.3d at 807–08.
During our review, we are looking not only for overt charges of fabrication or
improper influence or motive but also more subtle forms. A sufficient charge can be merely
implied: “a charge of recent fabrication or improper motive may be subtly implied through tone,
tenor, and demeanor during the entirety of the cross-examination; such an attack may not be
immediately apparent from the specific wording of the questions asked, but becomes obvious
only during the attorney’s final argument.” Id. at 799; accord id. at 808. Further, “[t]he specific 6 words . . . used during cross-examination might be interpreted as either a benign inquiry into [a
witness]’s confusion over the dates and locations where the sexual encounters took place or as
an implied charge of recent fabrication,” “[b]ut much of the force of cross-examination depends
upon the tone and tenor of the questioning, combined with the cross-examiner’s demeanor, facial
expressions, pregnant pauses, and other nonverbal cues” and therefore amount to an implied charge
even when no charge was made in express words. Id. at 808; see also id. at 808 n.27 (“sometimes
the attacking party leaves these points just below the surface, and relies instead on innuendo or the
suggestive force of questions or underlying facts to carry the message”). With these subtleties in
mind, the Court of Criminal Appeals has told reviewing courts what to look for:
[A] reviewing court, in assessing whether the cross-examination of a witness makes an implied charge of recent fabrication or improper motive, should focus on the purpose of the impeaching party, the surrounding circumstances, and the interpretation put on them by the [trial] court. Courts may also consider clues from the voir dire, opening statements, and closing arguments. From the totality of the questioning, giving deference to the trial judge’s assessment of tone, tenor, and demeanor, could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive?
Id. at 808–09 (internal quotation omitted). The required review involves “the totality of the
cross-examination, not isolated portions or selected questions and answers.” Id. at 808. We review
the record in the light most favorable to the trial court’s admissibility ruling. Klein v. State,
273 S.W.3d 297, 304 (Tex. Crim. App. 2008).
1. Implied charges of fabrication and improper influence through voir dire, opening statement, and cross-examinations
Here, during voir dire, Torres’s counsel raised the concept of witnesses—including
child witnesses—lying while testifying. Hammons, 239 S.W.3d at 804 n.15 (insinuation during
voir dire, and similar insinuations at other times, that witness recently fabricated testimony
7 supports admission of prior consistent statement (citing McInnes v. Yamaha Motor Corp., U.S.A.,
673 S.W.2d 185, 189 (Tex. 1984))). Counsel asked the venire panel who among them had children
and “if your kids have never lied.” He then said that despite whether lies are small or big, they are
still lies. Specifically about witnesses, he discussed “evaluating real people sitting in a chair,”
“[p]eople that are going to be under oath,” and asked the panel, “How many of you believe that
everybody who gets up on the stand is going to tell the truth?” Shortly after, he reraised the topic
of “adults lying, kids lying” and asked, “Why might somebody lie on the witness stand?” Hearing
a few answers, he emphasized “revenge,” “to get out of a bad situation,” and “to get their way with
something.” He rounded out the topic by asking, “[H]ow many of you think false accusations or
allegations happen?” After planting those seeds, counsel told the empaneled jury during opening
statement that they should “[l]isten to the witnesses carefully” and “[m]ake sure you understand
what they are saying, when they said it, and why they are saying it.” See id. at 804–05 & n.16,
808 (noting that “sinister seed of innuendo” may be “sowed” before trial court properly admits
prior consistent statement and only “c[o]me to full fruition” by express charges of fabrication made
after admissibility ruling).
During witness testimony, Torres’s counsel cross-examined several of the State’s
witnesses with a focus on M.W.’s testimony. With M.W. herself, Torres’s counsel’s questions
supported implied charges of improper influence and fabrication. Counsel implied improper
influence by questioning M.W. about “who all [she] spoke to about what you just testified to,”
including police, her counselor, the SANE, and the CAC forensic interviewer. See id. at 807 n.25
(prior consistent statement admissible in part because of cross-examination of child victim about
“the mother prompting and preparing her for trial” (citing State v. Brotherton, 384 N.W.2d 375,
380 (Iowa 1986))); Martinez v. State, 276 S.W.3d 75, 82–83 (Tex. App.—San Antonio 2008,
8 pet. ref’d) (cross-examination that intimated either that child victim was “coached” by prosecutor
or merely that victim’s testimony was not credible supported implied charge because rule
requirement is minimal and reviewing court must defer to trial court’s unstated observations of
“the tone and tenor of the questioning, combined with the cross-examiner’s demeanor, facial
expressions, pregnant pauses, and other nonverbal cues”). Counsel later made a similar implied
charge of improper influence when cross-examining the SANE, by suggesting law-enforcement
influence because they—and not M.W. or her family—arranged M.W.’s SANE examination.
Also when cross-examining M.W., counsel implied fabrication in at least two ways.
First, after M.W.’s testimony revealed that her mother did not believe her when she first reported
the abuse, Torres’s counsel implied fabrication in her testimony by suggesting that it included
details that M.W. had not shared with her mother. Concerning the pictures of M.W.’s forehead
after the bookshelf incident, counsel confirmed that M.W. never told her mother that the injury
was from Torres dropping her and not from tossing and turning while asleep. Counsel asked:
“You didn’t think to tell her that, hey, you took a picture of it, I’m telling you the truth?” And he
confirmed that M.W. thought that her mother did not believe her first report of abuse and then
asked why M.W. would not bring up the forehead injury with her. The trial court reasonably could
have concluded that these questions implied that M.W. fabricated details in her testimony that
she did not tell her mother about years earlier. See White v. State, 256 S.W.3d 380, 383–84
(Tex. App.—San Antonio 2008, pet. ref’d) (cross-examination of complainant that highlighted
“discrepancies between her testimony at trial and her statement to police,” arising from her
mentioning details at trial that she did not mention any earlier, supported admission of prior
consistent statement); see also Gutierrez v. State, No. 11-18-00298-CR, __ S.W.3d __, 2020 WL
6791050, at *8 (Tex. App.—Eastland Nov. 19, 2020, pet. ref’d) (op., designated for publication)
9 (prior consistent statement admissible in part because cross-examination suggested that “trial
testimony contained matters that [child victim] had not previously alleged”).
Second, counsel asked M.W. a litany of questions about whether she could
remember other details about the abuse that she otherwise testified about. About the bedroom
incident, he questioned M.W. about whether her door was locked; whether Torres locked it after
coming in; whether anyone else was home; whether it happened during the day or at night, on a
weekday or weekend day, and during summertime or the school year; whether she fought back and
made it off the bed; and whether she screamed or was prevented from or threatened against calling
out. Similarly, counsel asked M.W. for other acts of abuse “that you have details about” and then
tested her claims with an even longer series of questions about whether M.W. remembered certain
other details of the events or remembered how long she waited before telling her mother about
them. Counsel also questioned M.W. about how she “kn[e]w that for a fact that at the kitchen
table incident that [her mother] was in the guest bathroom.” And about the bookshelf incident and
other ones involving scuffles, counsel probed for a detail missing from M.W.’s testimony: “[I]n
the times that you described where my client came in and you fought back where he grabbed your
ankles or picked you up, do you remember ever thrashing and kicking the wall?” The trial court
reasonably could have concluded that all these questions amounted to so sustained an attack on
M.W.’s memory of events described in her testimony that Torres’s counsel was implying that the
testimony was fabricated because it lacked these details. See Hammons, 239 S.W.3d at 805 & n.16
(describing trial courts’ wide discretion to admit prior consistent statements because actions merely
“interpretable as” charges of fabrication can suffice); id. at 805 n.19 (“videotaped interview of
child victim was admissible” in part because “defense counsel presented intense and very capable
cross examination of the complainant” (citing and quoting Wylie v. State, 908 S.W.2d 307, 310
10 (Tex. App.—San Antonio 1995, pet. ref’d))); id. at 807 n.25 (prior consistent statement admissible
in part because of cross-examination of child victim about “her present memory” (citing
Brotherton, 384 N.W.2d at 380)).
During cross-examination of Det. Mathiews, Torres’s counsel implied fabrication
in M.W.’s testimony by contrasting its assertion of digital penetration of her vagina with the earlier
CAC interview, after review of which Det. Mathiews did not recommend a charge that required
proof of digital penetration. Torres’s counsel elicited Det. Mathiews’ view that her investigation
supported the offense of indecency with a child and not aggravated sexual assault because,
Det. Mathiews testified, “during [M.W.’s] accounts of the events, it was unclear if there was an
actual penetration.” Counsel confirmed that those “accounts” included the CAC interview and
that Det. Mathiews concluded from them that she wanted a charge of indecency with a child and
not aggravated sexual assault. The trial court reasonably could have concluded that by eliciting
this cross-examination testimony, Torres’s counsel implied that M.W.’s testimony about digital
penetration was fabricated.
Finally, with M.W.’s counselor, Torres’s counsel contrasted the counselor’s written
statement for police, which said that M.W. denied digital penetration, with M.W.’s trial testimony
to the contrary. Counsel confirmed that the counselor’s statement reflected her therapy notes and
that the notes themselves reflected M.W.’s reports to her. He then confirmed that the counselor’s
statement says, “child denies . . . any penetration with fingers or penis,” and that this denial
matched her therapy notes. The trial court reasonably could have concluded that this questioning
implied that M.W.’s testimony about digital penetration was fabricated.
After the State’s witnesses, the State offered the recording of the CAC forensic
interview into evidence. The trial court admitted it over Torres’s objections.
11 2. Confirming examples from Torres’s later testimony and closing argument
Examples from after admission of the recording confirm that Torres’s counsel had
levied implied charges of fabrication and improper influence affecting M.W.’s testimony. Torres
elected to testify, and the prosecutor confronted him with M.W.’s reports of abuse. In response to
one report, Torres explained that “I didn’t put my hand on her breasts” and responded affirmatively
when asked whether M.W. “was lying about” that report in her testimony. Torres later testified
expressly: “That’s what I’m telling the jury,” that M.W. “is lying about everything.” He also
bolstered an earlier charge of improper influence by testifying that M.W. “talks to so many
people” about the substance of her allegations. Finally, and linking up with his counsel’s cross-
examination of M.W., Torres testified that when her mother confronted him about M.W.’s reports
of abuse, her mother mentioned fewer of the alleged details than M.W. mentioned during her
testimony, implying that M.W. fabricated those extra details.
In his closing argument, Torres’s counsel revisited by-now-familiar themes. He
implied fabricated testimony:
[Y]ou have testimony from, I think, about ten witnesses that you got to consider. And when you do that, you got to look at not just what was said, but how it was said, who was saying and whether or not they changed it from the time they said it the first time or the second time or they gave a statement or changed it or amended it on the witness stand.
And he raised fabrication by M.W.: “Does it make sense to you that [M.W.] is telling you the
entire truth because she’s told this story so many times? Or does it make sense to you it’s easier
with the telling?” See Weatherly v. State, 283 S.W.3d 481, 487, 493–94 (Tex. App.—Beaumont
2009, pet. ref’d) (prior consistent statement admissible in part because of counsel’s questions about
“practice effect,” which holds that repeating something untrue helps repeater believe it to be true).
12 We conclude that Torres’s counsel’s voir dire statements, his reference to the topic
of witness lying during opening statement, and his questions throughout cross-examination of
M.W. and others all together would have allowed the trial court reasonably to find the second
Rule 801(e)(1)(B) element to be met when it admitted the recording. Our conclusion is supported
by the confirming instances from Torres’s testimony and his counsel’s closing argument.
Relatedly, because the trial court could reasonably have found an attack on M.W.’s
trial testimony, the fourth element is also met because the CAC interview preceded M.W.’s trial
testimony. See Gutierrez, 2020 WL 6791050, at *8 (prior consistent statement admissible when
cross-examination sufficiently attacked child victim’s trial testimony: “while Appellant alleged
that A.G. fabricated the allegations from the beginning, he also asserted that her trial testimony
contained matters that she had not previously alleged”).
B. The prior statement’s consistency
Finally, under the third element, “the proponent must offer a prior statement that is
consistent with the declarant’s challenged in-court testimony.” Hammons, 239 S.W.3d at 804. The
prior statement need only be “generally consistent” with the later statements. Id.; Dibello v. State,
432 S.W.3d 913, 915 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
In the recording of the CAC interview, M.W. told the interviewer that Torres
digitally penetrated her vagina about five to ten times. One such time occurred while she was on
her bed. She also told the interviewer that Torres touched her breasts, vagina, and butt multiple
times and that the only thing that Torres ever used to penetrate her vagina was his fingers. She
said that the instances of abuse began when she was 10 or 11 years old and stopped when she was
13 12 years old because that is when she told her mother about what had been happening. The trial
court reasonably could have concluded that all this was generally consistent with her testimony.
Further, she told the interviewer about an instance of abuse generally consistent
with her testimony about the kitchen incident: while she was doing homework in the kitchen,
Torres put his hands down her pants and grabbed her butt and breasts. She told the interviewer
about another instance generally consistent with her testimony about the bookshelf incident: that
Torres grabbed her in her room, she tried to get out of his grasp, he dropped her, she hit her head
near her bookshelf, Torres left the room, and she developed a mark on her forehead in the morning.
We conclude that the trial court reasonably could have concluded that the recording
of the CAC forensic interview was consistent with M.W.’s testimony under Rule 801(e)(1)(B),
meeting the rule’s third element. Because the record meets all four of the rule’s elements, the
trial court would not have abused its discretion by admitting the recording under Rule 801. See
Esparza, 413 S.W.3d at 85 & n.17; Carrasco, 154 S.W.3d at 129; Miles, 488 S.W.2d at 792. We
therefore overrule Torres’s sole appellate issue.
CONCLUSION
We affirm the trial court’s judgment.
__________________________________________ Chari L. Kelly, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: May 5, 2021
Do Not Publish